Foreword.

• Author: Pollak, Louis H.
• Position: Reflections on United States v. Lopez

In the October Term 1994 -- in other words, October 1994 through June 1995 -- the Supreme Court invalidated four federal statutes. Statistically speaking, this was a bumper crop of judicial harvesting, given that, in the 191 years from Marbury v. Madison(1) through June 1994, only 129 federal statutes were gathered in by the grim reaper of judicial review,(2) substantially less than one legislative demise a year. But numbers tell very little because some federal statutes are more equal than others. None of the four federal statutes laid to rest in the October Term 1994 deserves mention in the same breath with such venerable judicially ambushed statutes of yesteryear as the Missouri Compromise of 1820,(3) the Civil Rights Act of 1875,(4) the income tax provisions of the Tariff Act of August 15, 1894,(5) and the Child Labor Act of September 1, 1916.(6) The four federal statutes that lost their way in the October Term 1994 were: (1) section 5(e)(2) of the Federal Alcohol Administration Act of 1935,(7) barring the inclusion on beer labels of information respecting the alcohol content of the beer -- a restriction found incompatible with the First Amendment;(8) (2) provisions of the Ethics Reform Act of 1989,(9) prohibiting federal employees from receiving compensation for lectures or writings, even when entirely non-job-related -- a restriction also found not in accord with the First Amendment;(10) (3) section 476 of the Federal Deposit Insurance Corporation Improvement Act of 1991,(11) which undertook to reinstate on federal judicial dockets certain categories of civil suits arising under section 10(b) of the Securities Exchange Act of 1934 that had been held time-barred pursuant to a 1991 Supreme Court decision -- a congressional directive to courts to disregard a Supreme Court ruling that was held to contravene the separation of powers;(12) and (4) the Gun-Free School Zones Act of 1990,(13) which made. it a federal crime to possess a firearm on the premises or within a 1000 foot radius of a school(14) -- a prohibition held to be beyond the power conferred on Congress by Article 1, Section 8, Clause 3 of the Constitution to "regulate Commerce . . . among the several States."(15)

While the Gun-Free School Zones Act does not seem to have been of greater intrinsic importance than its three fellow legislative casualties,(16) its demise as announced in United States v. Lopez(17) by a Court divided five to four,(18) has been thought to merit the attention of a symposium issue of the Michigan Law Review, while the other demises have not. Why the difference?

II.

The difference lies in the fact that Lopez was the first time since Carter v. Carter Coal Co.,(19) decided fifty-nine years before -- in the spring of 1936, the fourth year of Franklin Roosevelt's first term -- that the Court held that Congress had passed a law that exceeded its authority under the Commerce Clause. In Carter -- by a vote of six to three -- the Court held, inter alia, that the provisions of the Bituminous Coal Act of 1935 "in respect of minimum wages, wage agreements [and] collective bargaining"(20) in the Depression-stricken bituminous coal industry were unconstitutional. The Court reasoned that mining constituted production" which is an "antecedent" of, not a part of, "commerce."(21) "Mining," said the Carter Court,

brings the subject matter of commerce into existence. Commerce disposes

of it. . . . Everything which moves in interstate commerce has

had a local origin. Without local production somewhere, interstate

commerce, as now carried on, would practically disappear. Nevertheless,

the local character of mining, of manufacturing and of crop growing

is a fact, and remains a fact, whatever may be done with the

products.(22)

Carter was the culmination of a series of decisions invalidating major New Deal initiatives on the ground that the transactions Congress sought to regulate were not part of "commerce" or that the transactions' effect on commerce was "indirect" rather than "direct."(23)

Less than a year after Carter -- on April 12, 1937, three months after the commencement of Roosevelt's second term -- the Court, in NLRB v. Jones & Laughlin Steel Corp.,(24) shifted gears. With hardly a backward glance at Carter, the Court -- by a margin of five to four -- sustained the directive of the National Labor Relations Board, issued pursuant to the National Labor Relations Act of 1935, that Jones & Laughlin, a major steel company, desist from discriminating against employees on the basis of union membership and in other respects interfering with attempts to organize the company's employees.(25) Chief Justice Hughes spoke for the Court:

When industries organize themselves on a national scale, making their

relation to interstate commerce the dominant factor in their activities,

how can it be maintained that their industrial labor relations constitute

a forbidden field into which Congress may not enter when it is

necessary to protect interstate commerce from the paralyzing consequences

of industrial war? We have often said that interstate commerce

itself is a practical conception. It is equally true that

interferences with that commerce must be appraised by a judgment that does not ignore actual experience.

Experience has abundantly demonstrated that the recognition of

the right of employees to self-organization and to have representatives

of their own choosing for the purpose of collective bargaining is

often an essential condition of industrial peace. Refusal to confer and

negotiate has been one of the most prolific causes of strife. This is

such an outstanding fact in the history of labor disturbances that it is a

proper subject of judicial notice and requires no citation of

instances. . . .

. . . The steel industry is one of the great basic industries of the

United States, with ramifying activities affecting interstate commerce

at every point. The Government aptly refers to the steel strike of

1919-1920 with its far-reaching consequences. The fact that there appears

to have been no major disturbance in that industry in the more

recent period did not dispose of the possibilities of future and like

dangers to interstate commerce which Congress was entitled to foresee

and to exercise its protective power to forestall. It is not necessary

again to detail the facts as to respondent's enterprise. Instead of

being beyond the pale, we think that it presents in a most striking way

the close and intimate relation which a manufacturing industry may

have to interstate commerce and we have no doubt that Congress had

constitutional authority to safeguard the right of respondent's employees

to self-organization and freedom in the choice of representatives

for collective bargaining.(26)

Writing for the Court in Lopez, Chief Justice Rehnquist characterizes Chief Justice Hughes's opinion in Jones & Laughlin as a "watershed" that "departed from the distinction between direct' and 'indirect' effects on interstate commerce" and held that "intrastate activities that 'have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions' are within Congress' power to regulate."(27)

The Court's post-Jones & Laughlin decisions have confirmed what was implicit in Jones & Laughlin itself -- that federal legislation regulating activities having a rationally demonstrable substantial impact on interstate commerce would be sustained.28 The decisions also have established that Congress does not have to show that each transaction it regulates has a substantial impact on commerce: "[W]here a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence."(29)

The paradigm illustration of this aggregation principle is Wickard v. Filburn,(30) in which the Court sustained a penalty imposed by the Secretary of Agriculture on Roscoe Filburn, an Ohio dairy farmer, who harvested more wheat than permitted by his wheat allotment under the Agricultural Adjustment Act of 1938. This statute enabled the Department of Agriculture to control the volume of American wheat production and thereby avoid calamitous swings in the price of a crop forming a major part of the world food supply. On Filburn's small farm, the principal market products were milk, eggs, and poultry. In addition, he grew winter wheat -- "homegrown" wheat -- that was used as feed, retained as seed for the next season, or ground into flour for home consumption. Filburn's permitted wheat acreage for 1941 was 11.1 acres; he also planted and harvested 11.9 excess acres that yielded 239 excess bushels -- with a resultant penalty of forty cents per bushel, totaling $117.11. As Justice Jackson explained for a unanimous Court, wheat harvested for home consumption

overhangs the market and, if induced by rising prices, tends to flow

into the market and check price increases. But if we assume that it is

never marketed, it supplies a need of the man who grew it which

would otherwise be reflected by purchases in the open market.

Home-grown wheat in this sense competes with wheat in commerce. . . .

This record leaves us in no doubt that Congress may properly

have considered that wheat consumed on the farm where grown,

if wholly outside the scheme of regulation, would have a substantial

effect in defeating and obstructing its purpose to stimulate trade

therein at increased prices.(31)

Moreover, the fact "[t]hat [Filburn's] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial."(32)

In similar fashion, the Court in Perez v. United States(33) upheld a provision of the Consumer Credit Protection Act,(34) which makes it a crime to engage in...